delegated legislation(topic2)

Question 1

what is delegated legislation?

Answer 1

law made by some person or body other than parliament

Question 2

where does the authority to make D.L. come from?

Answer 2

parent/ Enabling act

Question 3

what does the D.L. create?

Answer 3

a framework of the law that delegates power to others

Question 4

state to who the Access to Justice Act 1999 delegates its power to and gives power to?

Answer 4

1) delegates power to the lord chancellor
2) gives power to various aspects of legal funding scheme

Question 5

state to whom the Dangerous Dogs act 1991 delegates power and give power?

Answer 5

1)delegates power to the home secretary
2)gives the power to add new breeds to the dangerous dog’s list

Question 6

state to whom the Road Traffic Act 1988 delegates power and gives power?

Answer 6

1) delegates power to the transport minister
2) ban the use of mobile phones while driving

Question 7

what are the three types of delegated legislation

Answer 7

1)by-laws
2)orders in council
3)statutory instruments

Question 8

define statutory instruments

Answer 8

these give power to a minister to make rules and regulations for governing things in his areas

Question 9

define orders in the council

Answer 9

these are exercised by the king and the legislative privy council
-they have the power to make laws in emergencies or when Parliament is not sitting

Question 10

define by-laws

Answer 10

these are created by the local authority, public utilities, touch councils, or nationalized bodies

Question 11

what are the needs for D.L?

Answer 11

1) expert knowledge
2) local knowledge
3)detailed knowledge
4)law in an Emergency

Question 12

what are local by-laws permitted under?

Answer 12

Local Government Act 1972

Question 13

why do bylaws exist?

Answer 13

Local councils and corporations are in the best position to make regulations for their areas, the government cannot know what is best for each area

Question 14

give 2 examples of by-laws

Answer 14

1)parking restrictions
2)littering restrictions

Question 15

state the brief facts about the R v Fadol case

Answer 15

1) he put his feet on a train seat
2) he got fines - one-year conditional discharge and ordered to pay £50

Question 16

what was the parent act for R v Fadol

Answer 16

1888 Railway Regulation Act

Question 17

who was power given to in the R v Fadol case

Answer 17

Merseyside rail

Question 18

why was the by-law passed in R v Fadol

Answer 18

since the offender was behaving in a disorderly indecent or offensive manner

Question 19

what type of case is Boddington v BRB 1998

Answer 19

civil case

Question 20

what are two types of by-law cases

Answer 20

1)Boddington v BRB 1998
2) R v Fadol

Question 21

what was the parent act in Boddington v BRB 1998

Answer 21

transport act 1962

Question 22

state the brief facts of Boddington v BRB 1998

Answer 22

Mr Boddington was caught smoking on a train carriage- and this case went up to the House of Lords

Question 23

who was the power given to in Boddington v BRB 1998

Answer 23

East Sussex trains

Question 24

why was the by-law passed in Boddington v BRB 1998

Answer 24

since the law prohibited smoking on trains - by law 20 of the British railways boards by-laws 1965, and it caused health risks

Question 25

within orders in council are privy councils - what are privy council made up of?

Answer 25

made up of prime ministers, members of the government, and legal advisers

Question 26

what are the 3 occasions when an order in councils can be made

Answer 26

1)to transfer Responsibility between government departments
2)make law in an emergency under the civil law contingencies act 2004
3)to bring acts or part of acts into force

Question 27

how are orders in the council made?

Answer 27

they are drafted by government departments and approved by the king and privy council.

Question 28

where does the power to create order in the council come from?

Answer 28

come from parent/enabling act

Question 29

what do orders in council allow the government to do

Answer 29

allows them to make legislation without having to go through the legislative process

Question 30

what is the order in the Council for the Dangerous Drugs Act 2008

Answer 30

reclassifying cannabis, cannabis resin, cannabinol, and cannabinol derivatives from class c to class B drugs

Question 31

what was the parent act for Dangerous drugs act 2008

Answer 31

misuse of drugs act 1971

Question 32

when did the orders in the council come into force for Dangerous Drugs Act 2008

Answer 32

2008

Question 33

how do you know that the Dangerous Drugs Act 2008 is an order in the council

Answer 33

it is an OIC =’amendment’

Question 34

what are government departments within statutory instruments

Answer 34

there are about 15 government departments, each one dealing with a different area of policy

Question 35

other key information about statutory instruments

Answer 35

this is a major method of law-making as about 3,000 statutory instruments are brought into force each year

Question 36

give 2 examples of Statutory instruments

Answer 36

1) The Chemicals Regulation 2009
- the minister made this for work and pensions under the power given in the (European Communities Act 1972)
2)police codes of practice concerning stop and search, arrest, and detention
- these were made by ministers of justice under the powers in the (police and Criminal Evidence Act 1984)

Question 37

what are the parliamentary controls over delegated legislation

Answer 37

1)the enabling act
2)affirmative resolutions
3)negative resolutions
4)questions by MPs
5) scrutiny committee
6)super-affirmative resolutions

Question 38

what is the enabling act and its factors(parliamentary control)

Answer 38

1) who can make the D.L
2) whether it applies to the whole country or only certain areas
3) whether it needs to be laid before parliament
4) whether the government department must consult with anyone before making regulations

Question 39

what are questions by MPs (parliamentary control)

Answer 39

1) individual ministers may also be questioned by MPs in parliament in the work of their departments, and this can include questions about proposed regulations.

Question 40

explain an affirmative resolution giving an example (parliamentary control)

Answer 40

1)explaining the change in DL in a parliamentary vote
e.g P.A.C.E - the enabling act that allows the home secretary to change police rules if Parliament agrees

Question 41

explain negative resolution by giving an example(parliamentary control)

Answer 41

laying the D.L. before parliament, if no one disagrees it becomes law( it takes 40 days).
e.g teachers’ pay rise

Question 42

explain super affirmative resolution and give an example ( parliamentary control)

Answer 42

presents the D.L. to both houses for a vote.
-may need to present to scrutiny committee
-most careful examinations of legal change therefore it is most democratic.
e.g Digital Economy rules regulation

Question 43

explain scrutiny committee (parliamentary control)

Answer 43

an effective check on the existence of a joint select committee on statutory instruments which formed in 1973
- this committee reviews all statutory instruments and where necessary, will draw the attention of both houses of parliament to points that need further consideration

Question 44

translate ‘ultra vires’ (judicial control)

Answer 44

‘beyond the power’

Question 45

D.L. can be challenged in the high court, but why? (judicial control)

Answer 45

judicial review is necessary because delegated legislation may not be democratic- so this can stop it.

Question 46

when someone challenges D.L. they have to prove ‘‘locus Standii ‘ - define the word

Answer 46

they are directly affected by the delegated legislation

Question 47

what are the three types of judicial reviews

Answer 47

1)procedural ultra vires
2)substantive ultra vires
3)unreasonable ultra vires

Question 48

explain procedural ultra vires giving an example.

Answer 48

1) the body has the power to execute D.L. but did not follow the correct procedure
2) e.g. Aylesbury mushroom case 1972- minister of labor did not follow a specific procedure when passing the D.L against mushroom growing - this led to the Mushroom Growers Association going against it

Question 49

Explain substantial ultra vire giving examples

Answer 49

1) the body making the D.L. has gone beyond its powers or done something it never has the power to do.
e.g Strickland 1896- by-law banning singing or receiving of any song -however this law was deemed as absurd and therefore removed

Question 50

explain unreasonable ultra vires giving an example

Answer 50

1)a D.L so unreasonable that no public body would incorporate it
2)e.g Picture Houses Ltd v Wednesbury Corporation (1948) - by-law banning children from watching cinema on weekends- this was deceased as unreasonable and therefore removed

Question 51

state the effectiveness of procedural control and its main issue

Answer 51

1) is effective as it ensures that procedures are followed- e.g consulting with parties
2)however a very technical legal issue- requires parties’ knowledge to bring a case.

Question 52

state the effectiveness of substantive control and its main issue

Answer 52

1) it’s effective as it stops ministers and other bodies from exercising powers beyond those agreed by parliament
2)however, it is rarely used, the costs of judicial review are high and have to be covered by people who bring cases

Question 53

state the effectiveness of
unreasonable control and its main issue

Answer 53

1) it’s effective because it prevents abuse of power that has been legally given by the parent act
2)however, the proof is difficult to acquire
+wednesbury unreasonable test - reasoning or decision is Wednesbury unreasonable if it was so unreasonable that no reasonable person acting reasonably could have made it.